Case Alert: U.S. Supreme Court Takes on Copyright Restoration Case

On October 5, 2011, The United State Supreme Court heard arguments on the questions of whether Congress can restore copyright protection to a work whose copyright protection had previously expired and was therefore in the public domain. This case has substantial and profound implications for copyright law both in the U.S. and abroad so this is definitely a case to watch.

Lyle Denniston’s coverage on the SCOTUS blog is excellent so I won’t rehash it in full here. But in a nutshell, this is a test case that questions Congress’s power to grant copyright protection to certain literary and artistic works prepared by foreign authors that had never existed in the U.S. in order to protect authors and composers worldwide under international treaties. This process is referred to as “restoration” because if granted, the exclusive rights of copyright (to copy, distribute, prepare derivative works and perform/display publicly) would be conferred on works that are now in the public domain. Works in the public domain have no protection and therefore available for use to all. So clearly this has major implications for those currently using these public domain works.

The American Bar Association filed an amicus curiae brief in August supporting Congress’ power to implement U.S. treaty obligations. The brief also states the ABA’s position that Section 514 of the Uruguay Round Agreements Act of 1994 does not violate the Constitution’s copyright clause or the First Amendment:

It is important for the United States to comply with the international treaties that this country has ratified, and to do so in a way that does not encourage other countries to disregard their obligations under those treaties …,” the brief states. “Congress made a judgment that Section 514 was the appropriate way to comply with the Berne Convention and the [Trade Related Aspects of International Property Rights] agreement, and would result in important protections abroad for U.S. authors.

Denniston describes the two-pronged constitutional challenge as follows:

The case involves a two-pronged constitutional challenge to a 1994 law, passed by Congress to implement the global agreement on trade in the so-called “Uruguay Round.”   First, the case tests whether the Copyright Clause gives Congress any authority to take a work out of the public domain — that is, to restore its copyright shield once that has expired.  Second, it tests whether the 1994 law at issue violates the free speech rights of those who, before the law was passed, freely performed or distributed works that had entered the public domain — such as Prokofiev’s Peter and the Wolf.

So I will watch this case carefully and provide updates as more information becomes available. I’m interested in your thoughts on the issue so please post a comment.